Sam Bassett: The TT Interview

The former chairman of the Forensic Science Commission on why he believes the governor replaced him, whether he thinks political motivations were behind it, and why it is critical that the commission finish the Willingham arson investigation.

At the time, the commission was in the middle of its investigation into the arson for which Cameron Todd Willingham was convicted and, in 2004, executed. An independent expert hired by the panel had concluded that the investigation into the fatal fire was seriously flawed, even by the standards in place when he was convicted in 1992 (other outside experts have reached similar conclusions; the original state investigators of the Willingham fire have stood by their conclusion that it was intentionally set by Willingham).

Just days before the expert, Dr. Craig Beyler, then the head of the International Association of Fire Safety Science, was to testify before the commission, Perry dropped Bassett, an Austin defense attorney, from the commission. He named as chairman the hard-charging Williamson County District Attorney John Bradley. The Willingham investigation slowed, and Bradley questioned whether the commission even had authority to review the case.

This week, Bassett spoke extensively to CNN, criticizing the governor's intervention in the investigation and questioning his motivation.

The commission, under its newest chairman, Dr. Nizam Peerwani, the Tarrant County medical examiner, is meeting Thursday and Friday to consider, among other issues, whether it can still proceed with the investigation into the Willingham arson case in light of a Texas Attorney General's July ruling that limits its jurisdiction to evidence gathered and tested after Sept. 1, 2005, when the commission was created.

The Tribune sat down with Bassett on Thursday to discuss his views on why the governor replaced him, his suspicions that political motivations were behind it, why he believes the commission had the authority to conduct its investigation, and why he argues it is critical for the Texas justice system that the commission finish what it started under his leadership.

In an e-mailed response Perry spokeswoman Lucy Nashed did not address Bassett's allegations that the governor deliberately stymied the investigation. She said Perry was confident that Willingham was guilty. "In Texas, if you murder your three children, you can expect to be prosecuted to the fullest extent of the law," she said. "Willingham had full access to every level of the appeals process, and his conviction was consistently upheld."

Editor's note: This transcript and the accompanying video have been edited and condensed for clarity.

Texas Tribune: Talk briefly about your time on the commission — how long you were chairman and how you got to be on the board.

Sam Bassett: Initially, I applied as part of the Texas Criminal Defense Lawyers Association — the commission has a slot designated for a criminal defense lawyer, and it has a slot designated for a prosecutor. The Texas Criminal Defense Lawyers [Association] submits names to the governor’s office, and then he selects from the list submitted by the TCDLA.

I was selected in 2005 at the end of the year shortly after the commission was created, and then in 2006 there wasn’t much activity because the commission had no funding. In 2007 ,with that legislative session, the commission gained funding, and activity started happening. The governor appointed me to be chairman in late 2007. And then I served until September 2009.

TT: When did you first hear from the governor's office about the Willingham investigation?

SB: The first contact I had with the governor’s office was in February of 2009. I was called by an appointment secretary of sorts and asked to come over and meet with the general counsel, and [I was told] that it was important and urgent. I couldn’t meet that day, but I arranged to meet the following day during the noon hour I think, and I went over and met with David Cabrales who was then his general counsel and Mary Anne Wiley who was an assistant general counsel in charge of criminal justice issues. And I had a meeting in their office in February. That was the first meeting I had with the staff.

TT: What did they want to talk about?

SB: I wasn’t told why they wanted me to come over. I wasn’t given any sort of agenda or anything that they wanted to discuss ahead of time. I just went; I didn’t know what they were going to talk about. We began the meeting by discussing the commission in general, and then we started talking specifically about the investigations we were doing. We seemed to get stuck on the Willingham investigation. As soon as I brought it up the tone of the meeting turned more hostile and Mr. Cabrales in particular was very adamant that that’s not the kind of investigation the commission was intended for, and I think Ms. Wiley at one point characterized our investigation as a waste of state money, and I was criticized for bringing in an expert from outside of Texas. I just tried to respond by saying I thought we had jurisdiction over the issue, but that I would go do some checking to make sure I wasn’t off. And I also told them briefly that I thought the commission wanted to go forward with the investigation since it was a unanimous vote to proceed with the investigation.

TT: What was the basis for their argument that the commission should not be conducting the Willingham investigation?

SB: Their position was that the commission was created to only investigate future and new cases, that it wasn’t designed to investigate old cases. And when I heard that, I had thought about that before and I had actually discussed that with Allen Levy who was the prosecutor on the commission before, and I think we both had satisfied ourselves that there was no problem with investigating older cases since it would impact forensic science in the future. I also had a meeting with Sen. (John) Whitmire’s assistant Larance Coleman, who advises him on criminal justice issues. And he reassured me that he felt that Sen. Whitmire thought we were doing the appropriate thing, and after all that and after looking at the statute again, I was satisfied that we had jurisdiction.

SB: What was frustrating for me when the attorney general’s opinion came out [in July 2011 restricting the commission's jurisdiction to consider the case] is that the attorney general was acting as our general counsel at the time we decided to do the investigation. And we voted to do the investigation in August of 2008, and a representative of the attorney general’s office was at every meeting and the issue of jurisdiction was never raised. The first time it was ever raised was by Mr. Bradley when he became chair.

TT: So when Mr. Bradley started asking questions about jurisdiction and bringing this up did you start to wonder if this question was coming directly from the governor’s office?

SB: It was not the only thing parroted by Bradley. Bradley also used the term "monster" after the governor had used the term "monster" to describe Willingham. Mr. Bradley had seemed to adopt their position on jurisdiction. It seemed to be that he was in full alignment with what the governor’s office positions were. The good news, at least for a while I thought, was that the scientists on the commission did not agree with Mr. Bradley, and Mr. Bradley’s position was the minority position. I think he may have actually been the only one on the commission that took certain stands, but he was rebuffed by the other eight commissioners from at least what I observed. And so I was confident and hopeful that the investigation would be finished.

TT: Were you concerned, when you were chairman, that the governor's office might try to squelch the commission's investigation?

SB: I began to be concerned that the issue was becoming political, because the legislative session was in play. I was concerned that the Forensic Science Commission might get defunded. I was concerned that for the first time some staff members of the governor’s started attending the meetings. They didn’t attend the meetings before February of 2009. I began to feel that the issue was being carefully watched by the governor’s office at that point.

TT: As you moved forward, did you continue to hear from the governor's office?

SB: There was another meeting about a month later. I think it was in March or perhaps early April, with Ms. Wiley. And we discussed in general the commission, and she encouraged us to focus on activities other than investigations such as liaisons with crime labs, tours of crime labs, and more general work. She never, none of them ever said, 'Don’t do the investigation,' but it was clear to me that they were uncomfortable with the investigation. That meeting was not as hostile or confrontational, it was a lot more calm. That was the last meeting I had with the governor’s staff, that would have been in March or April of 2009.

TT: When did you hear about the possibility that the governor might be changing out some of the appointees to the commission?

SB: Dr. Beyler’s report was released in the summer of 2009 and I began to hear that the governor was looking for new appointees for my slot because he had requested that the TCDLA send him a new list for reappointments for September of 2009. When I became aware of that I let the commission know that the governor may be considering different appointments and that I felt that for continuity it would be important to keep the same people on the commission if possible to finish the important work that we were doing. So, I think some of those commissioners wrote the governor’s office a letter supporting me and asking that I be reappointed, and I think the TCDLA also asked that I be reappointed. And so it was about Sept. 29 or 30 of 2009 when I got the call from Doris Scott, who works for the governor, and she said that I was not going to be reappointed and that the governor thanked me for my service. And at that time it was a little bit of a surprise to me. It wasn’t a total shock that I wasn’t going to be reappointed, but the timing of it [was] really devastating to the investigation, because we had a meeting scheduled in Dallas for either three or four days after they called me, and everything was arranged. Dr. Beyler was coming in, and we were going to do a public hearing where we were going to question Dr. Beyler about the report that he had prepared for us. And so the fact that they would call me three days before that meeting was a real surprise to me and a real disappointment.

TT: Do you know if the governor’s office had seen the report at that point?

SB: They had seen the report, and we had released it to the public as we were required to do under the open records laws, and so it had created a little bit of media attention, and I knew that it would be a well-attended meeting, but I thought that it was important that the commission question Dr. Beyler and continue the investigation on the case. We weren’t going to stop the investigation with Dr. Beyler’s report. We wanted to welcome any other opinions that needed to be vetted and discussed before we wrote our final report.

TT: Did you feel at that time that that was an overtly political move to stop that from coming up? That was about the time the primary campaign was getting going between Perry and Sen. Kay Bailey Hutchison.

SB: I’m certainly a little bit naive when it comes to politics, but at the time I didn’t know. I knew that it was possible, that the motives were to perhaps derail or stop the investigation — I thought that that was a possibility, but I hoped that it wasn’t the case. I wanted the investigation to continue and be concluded because I thought it was important for the commission and I thought it was important for Texas that the investigation be finished. At the time, I gave the governor the benefit of the doubt that this was just a routine change, although I had my suspicions. I wanted to give him the benefit of the doubt. And then, Mr. Bradley, the new chair who was appointed by the governor, immediately came out at a Senate hearing, he [said] in his testimony I believe, “We’re going to complete this investigation, we just have to do some new policies and procedures first.” Although I was frustrated, I was convinced for a long time that they were going to go ahead and complete the investigation.

TT: Sounds like you’re not convinced any more.

SB: I’m not convinced. The meeting today and tomorrow, I think Mr. Bradley’s last act as chairman was essentially to request an opinion of the attorney general’s office as to whether the commission had jurisdiction over the Willingham investigation. And I think there have been a lot of people who have weighed in [on] both sides of that issue and ultimately the AG rendered the opinion that it did not have jurisdiction over the investigation, although the opinion was a little bit confusing. To me that was a clarification in my mind that the whole intent of the restructuring of the commission, the appointment of John Bradley, Mr. Bradley’s actions since he became chair, it became clear to me that the whole strategy must have been to make sure that the investigation didn’t reach a conclusion.

TT: That's what you believe now?

SB: Looking back now two years after I was replaced, you can’t help but think the governor’s office was doing everything behind the scenes to make sure the investigation was not completed. That’s what I concluded.

TT: Why would they not want the investigation to be concluded?

SB: I can’t imagine that politics was not a driving motivator. I think that the unfortunate thing from my perspective is, had we completed the investigation — and we did not even know what our conclusions were going to be — but had we completed the investigation, he could have perhaps used that as an advantageous thing in political speeches to show that he had balance and he considered other perspectives and that he did what should be done for the future rather than dwelling on the past and how it may look in a political campaign.

TT: As the commission meets today with their new chairman, what action do you think they ought to take?

SB: Well, I certainly think that they should finish the investigation just as Mr. Bradley promised he would do when he was testifying before Sen. Whitmire’s [criminal justice] committee. Jurisdictional issues aside, I think the forensic science issue is very significant in arson cases, and I think they should complete the investigation for two reasons. One is it needs to be put behind the commission, and the commission needs to move on to other things. And then secondly, it is important for people in prison now for arson and for people who have pending arson cases. It is not a ton of cases, but it is my understanding that there could be dozens if not hundreds of people in Texas having been convicted of arson. I would guess some of those have the same issues that we were dealing with in the Willingham case.

TT: So it is important that the commission conclude the investigation?

SB: I think that the difficulty with the case is that you couldn’t ever retry the case and determine if Willingham was actually innocent or not, but what we can do and what we could have done is... emphasized the improvement of arson science in the Texas Courts. ... I think the struggle I have is I don’t understand how a leader — Democrat, Republican, Libertarian or otherwise — could stand in the way of a commission doing an investigation that would improve the justice system. And the Willingham case, in my view, would have been tried entirely differently under today’s scientific standards, and I am not even sure it would have gone to trial under today’s scientific standards. For a leader to stand in the way of examining that for the purpose of future criminal justice issues to me is very disappointing.

TT: One of the things I have heard from the Innocence Project and some others is that Mr. Willingham’s guilt or innocence is an issue that you can’t avoid, but the main question here is about other people who might be imprisoned because of the similar faulty science being used. Can you talk about, if the governor has been standing in the way of this investigation politically, what it might mean for others who may be facing the same situation?

SB: I think the problem I have with the governor’s stance and sometimes the stance of other people — Democrat and Republican alike — is if you fail to re-examine important issues like this, you really cripple the ability of the criminal justice system to adjust to new science. And you set forth the mentality that we are not going to go back and re-examine cases because it’s followed all the "procedures of the law." Well the problem with that analysis is that Texas leads the nation in people who have been freed from prison as a result [of] DNA exonerations. And all of those people who were freed followed the "procedures of the courts." You have to acknowledge that mistakes were made and you have to acknowledge that mistakes need to be minimized, and if you stand in the way of a re-examination of a case like Willingham, I think you are standing in the way of a justice system with integrity.

TT: Do you think that becomes more important now that the governor is on this national stage?

SB: It certainly gets more attention, but I do not think it is less important. I think it would be as important as if he were running for Justice of the Peace of West Texas.

TT: It seems like your position about the governor’s role has gotten stronger recently. What has prompted that decision, and what has prompted you to talk about it now?

SB: I think I adopted a wait-and-see attitude, and I think that the evolution of the case with Mr. Bradley’s chairmanship along with this attorney general’s opinion that came out just kind of underscored to me, it connected the dots for me. I have always tried to be cautious about injecting politics into my opinions, but I would have this view if Mr. Perry, if Governor Perry, was a Democrat or a Republican. I think that looking back now, two years after the fact, what has happened since I was replaced has connected the dots that this is more than just a routine replacement of the commission. It was something that was designed to shelve the investigation in my view.

Haleigh Svoboda and Susannah Jacob contributed to this report.

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